- 18 - Ref. Co. was made specific to the terms of the contract at issue therein and would not apply generally to all contracts, particularly not to a contract for sale as existed in this case. Petitioners also rely on the case of Boykin v. Commissioner, 344 F.2d 889 (5th Cir. 1965), for the proposition that, although legal title to real property does not pass to a purchaser under a contract of sale until actual delivery of a deed to the property, a purchaser is vested with equitable title from the date of the contract for sale or from the date the purchaser takes possession. Petitioners’ reliance on Boykin is misplaced. In Boykin, the Court of Appeals for the Fifth Circuit (Fifth Circuit), to which an appeal in this case would lie, stated: under Texas law, a purchaser of realty ordinarily gets equitable title with the execution of a binding contract of sale. [Footnote omitted.] Of course it is often said that equitable title does not pass where the contract is by its terms expressly conditional. North Texas Realty & Construction Co. v. Lary, Tex. Civ. App., writ refused, 1911, 136 S.W. 843; 52 Tex. Jur. 2d Specific Performance � 48. And pointing out that "A contract may be conditional in its inception as to one party and unconditional as to the other," that text speaks in terms of the right to specific performance not being available prior to the time the equitable title passes. Ibid. In other words, the right to specific performance resting on an equitable right frequently measures the time the equitable right comes into being. [Emphasis added.] Boykin v. Commissioner, supra at 892. Under Texas law, a party to a contract is not entitled to specific performance where that party materially breaches the contract by failing to meet aPage: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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